Citation Nr: 0835790
Decision Date: 10/17/08 Archive Date: 10/27/08
DOCKET NO. 04-33 836 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Jackson,
Mississippi
THE ISSUE
Entitlement to an initial disability evaluation for post-
traumatic stress disorder (PTSD) in excess of 30 percent for
the period from June 17, 2003; and higher than 70 percent for
the period from March 12, 2008 to present.
REPRESENTATION
Appellant represented by: Mississippi Veterans Affairs
Commission
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
Michael Martin, Counsel
INTRODUCTION
The veteran had active service from May 1966 to February
1970. His service personnel records reflect that he engaged
in combat in Vietnam.
This matter came before the Board of Veterans' Appeals
(Board) on appeal from decisions by the Department of
Veterans Affairs (VA) Jackson, Mississippi, Regional Office
(RO).
The Board finds that the contentions presented by the veteran
and his representative have raised a claim for a total
disability rating based on individual unemployability due to
service-connected disabilities. However, that issue has not
been developed or certified for appellate review.
Accordingly, the Board refers that claim to the RO for
appropriate action.
FINDINGS OF FACT
1. During the period from June 17, 2003, through March 11,
2008, the post-traumatic stress disorder resulted in
disturbances of motivation and mood, but did not result in
occupational and social impairment with reduced reliability
and productivity due to such symptoms as: flattened affect;
circumstantial, circumlocutory, or stereotyped speech; panic
attacks more than once a week; difficulty in understanding
complex commands; impairment of short and long-term memory
(e.g., retention of only highly learned material, forgetting
to complete tasks); impaired judgment; impaired abstract
thinking; or difficulty in establishing and maintaining
effective work and social relationships.
2. During the period from March 12, 2008, the service-
connected PTSD did not cause total occupational and social
impairment, due to such symptoms as gross impairment in
thought processes or communication; persistent delusions or
hallucinations; grossly inappropriate behavior; persistent
danger of hurting self or others; intermittent inability to
perform activities of daily living (including maintenance of
minimal personal hygiene); disorientation to time or place;
and memory loss for names of close relatives, own occupation,
or own name.
CONCLUSION OF LAW
The criteria for an initial disability rating for PTSD higher
than 30 percent for the period from June 17, 2003; or higher
than 70 percent for the period from March 12, 2008 to the
present date are not met. 38 U.S.C.A. §§ 1155, 5107 (West
2002); 38 C.F.R. § 4.130, Diagnostic Code 9411 (2007).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
The VA has a duty to provide notification to the veteran with
respect to establishing entitlement to benefits, and a duty
to assist with development of evidence. The Board finds that
the content requirements of a duty to assist notice have been
fully satisfied. See 38 U.S.C.A. § 5103(a); 38 C.F.R.
§ 3.159(b). Letters dated in March 2002 and September 2002
from the RO provided the veteran with an explanation of the
type of evidence necessary to substantiate his claim as well
as an explanation of what evidence was to be provided by him
and what evidence the VA would attempt to obtain on his
behalf. The veteran was also provided information regarding
the assignment of ratings and effective dates in June 2006.
The Board notes that the veteran's claim for a higher rating
arises from his disagreement with the initial evaluation
following the grant of service connection. Courts have held
that once service connection is granted the claim is
substantiated, additional notice is not required and any
defect in the notice is not prejudicial. Hartman v.
Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v.
Nicholson, 21 Vet. App. 112 (2007). The VA has no
outstanding duty to inform the veteran that any additional
information or evidence is needed. The Board concludes,
therefore, that the appeal may be adjudicated without remand
for further notification.
The Board also finds that all relevant facts have been
properly developed, and that all evidence necessary for
equitable resolution of the issue has been obtained. The
veteran's service medical records and post service treatment
records have been obtained. His Social Security
Administration records were obtained, and he was afforded
disability evaluation examinations. The veteran had a
hearing before a regional office hearing officer. The Board
does not have notice of any additional relevant evidence
which is available but has not been obtained. For the
foregoing reasons, the Board concludes that all reasonable
efforts were made by the VA to obtain evidence necessary to
substantiate the veteran's claim. Therefore, no further
assistance to the veteran with the development of evidence is
required.
Disability evaluations are determined by the application of a
schedule of ratings which is based on the average impairment
of earning capacity in civil occupations. See 38 U.S.C.A.
§ 1155. Separate diagnostic codes identify the various
disabilities. The rating schedule is primarily a guide in
the evaluation of disability resulting from all types of
diseases and injuries encountered as a result of or incident
to military service. The percentage ratings represent as far
as can practicably be determined the average impairment in
earning capacity resulting from such diseases and injuries
and their residual conditions in civil occupations.
Generally, the degrees of disability specified are considered
adequate to compensate for considerable loss of working time
from exacerbations or illnesses proportionate to the severity
of the disability. 38 C.F.R. § 4.1.
Diagnostic Code 9411 provides that a 30 percent rating is
warranted when post-traumatic stress disorder is productive
of occupational and social impairment with occasional
decrease in work efficiency and intermittent periods of
inability to perform occupational tasks (although generally
functioning satisfactorily, with routine behavior, self-care,
and conversation normal), due to such symptoms as: depressed
mood, anxiety, suspiciousness, panic attacks (weekly or less
often), chronic sleep impairment, or mild memory loss (such
as forgetting names, directions, recent events).
A 50 percent rating is warranted where there is occupational
and social impairment with reduced reliability and
productivity due to such symptoms as: flattened affect;
circumstantial, circumlocutory, or stereotyped speech; panic
attacks more than once a week; difficulty in understanding
complex commands; impairment of short and long-term memory
(e.g., retention of only highly learned material, forgetting
to complete tasks); impaired judgment; impaired abstract
thinking; disturbances of motivation and mood; difficulty in
establishing and maintaining effective work and social
relationships.
A 70 percent rating is warranted where there is occupational
and social impairment, with deficiencies in most areas, such
as work, school, family relations, judgment, thinking, or
mood, due to such symptoms as suicidal ideation; obsessional
rituals which interfere with routine activities; speech
intermittently illogical, obscure, or irrelevant; near-
continuous panic or depression affecting the ability to
function independently, appropriately and effectively;
impaired impulse control (such as unprovoked irritability
with periods of violence); spatial disorientation; neglect of
personal appearance and hygiene; difficulty in adapting to
stressful circumstances (including work or a worklike
setting); and inability to establish and maintain effective
relationships.
A 100 percent rating is warranted where there is total
occupational and social impairment, due to such symptoms as
gross impairment in thought processes or communication;
persistent delusions or hallucinations; grossly inappropriate
behavior; persistent danger of hurting self or others;
intermittent inability to perform activities of daily living
(including maintenance of minimal personal hygiene);
disorientation to time or place; and memory loss for names of
close relatives, own occupation, or own name.
Where there is a question as to which of two evaluations
shall be applied, the higher evaluation will be assigned if
the disability picture more nearly approximates the criteria
required for that rating. Otherwise, the lower rating will
be assigned. 38 C.F.R. § 4.7. When applying the rating
schedule, it is not expected, especially with the more fully
described grades of disabilities, that all cases will show
all the findings specified. 38 C.F.R. § 4.21.
The RO has assigned a staged rating for the veteran's PTSD.
The disorder was rated as 30 percent for the period from June
17, 2003, and rated as 70 percent for the period from March
12, 2008 to present
During the hearing held at the RO in November 2004, the
veteran presented testimony that he was under treatment for
symptoms of PTSD by a private counselor. He stated that he
was on medication, and that his nightmares and flashbacks
were not as recurrent as they had been. He recounted that he
stayed at home most of the time and did not like to go to
town. He said that he did not like crowds. He also said
that he sometimes had problems sleeping at night.
The evidence which has been presented also includes VA
examination reports and VA and private mental health
treatment records. For example, a record dated in April 2004
from Life Help, indicates that the veteran had been started
on Zoloft about two and a half years earlier, with increased
dosages since then. He reported that the medication no
longer seemed to be as effective. He complained of
nightmares, flashbacks, paranoia, social isolation,
withdrawal, depression, and physical complaints. There was
no suicidality, and no homicidality. There did not appear to
be hallucinations or psychoses. His thoughts were logical,
coherent, and goal directed. His mood was depressed. He
related irritability and insomnia. The impression was post-
traumatic stress disorder.
The report of a post-traumatic stress disorder examination
conducted by the VA in July 2003 shows that the veteran
reported a history of extensive combat in Vietnam. He
reported that he had his first psychiatric symptoms in 1985.
He reported symptoms of flashbacks, nightmares,
hypervigilance, hearing voices, seeing things, thoughts of
suicide, being unable to communicate, isolation, feeling
depressed, and having mood swings and irritability. He
denied any history of hospitalization. It was noted that
there was a restricted range of affect. On mental status
examination, the veteran was dressed casually. He was calm
and cooperative. He related well. There was no psychomotor
agitation or retardation. His speech was spontaneous and
productive. His mood was euthymic, and his affect was
appropriate. He was not tangential or circumstantial.
Although there was loosening of association or flight of
ideas, he denied paranoid ideation or delusions. He denied
any active suicidal or homicidal thoughts. Insight and
judgment were fair. Impulse control was less than fair.
There were no gross cognitive defects. On mini mental status
examination, he scored a 29. His abstract thinking was
intact.
The diagnosis was post-traumatic stress disorder, chronic and
moderate, and rule out major depression. The examiner
assigned a GAF score of 60. The examiner noted that the
veteran's symptoms did affect his functional and social life
to some degree, but he had been able to work as a bus driver
for more than 30 years, and was happily married in his third
marriage. It was noted that he was unable to work due to
diabetes.
A VA record dated in November 2003 shows that the veteran
worked full time as an over the road truck driver. He was
casually dressed and groomed. He was alert and oriented. He
made appropriate eye contact. He was pleasant and fully
cooperative. His affect was calm. His mood was reported to
be irritable. His speech was within normal limits in rate,
volume and content. He denied suicidal or homicidal
ideation. He denied hallucinations. The pertinent diagnosis
was anxiety, NOS. The examiner assigned a GAF score of 65.
The examiner commented that the veteran had mild to moderate
situational anxiety symptoms that did not significantly
interfere with his social, occupational or family
functioning. The examiner also commented that the veteran
did not then meet the diagnostic criteria for PTSD.
The report of a psychology examination conducted for the
Social Security Administration in April 2004 reflects that
the examiner stated that the veteran seemed to be coping
fairly well with his chronic post traumatic stress disorder
with chronic depression. He reportedly appeared stable
emotionally, was not losing his temper any more, and was not
having any suicidal ideation. It was noted that he was not
having symptoms of PTSD that intruded into his waking hours,
and he was able to discuss his combat experiences without
becoming overly emotional. His depression appeared to be
chronic.
A VA hospital summary dated in February 2006 notes that the
veteran was hospitalized for a substance abuse rehab program.
The diagnoses included cannabis abuse and post-traumatic
stress disorder. On mental status examination, it was noted
that he was slightly disheveled. Psychomotor activity was
normal. His mood was euthymic. His affect was appropriate.
His speech was coherent without looseness of associations or
flight of ideas. His thought processes were logical. His
thought content had no delusions. He denied suicidal or
homicidal ideation. Abstracting was logical. His insight
was intact, and judgment fair.
The report of a VA PTSD examination conducted in March 2006
reflects that the veteran reported a depressed mood, loss of
interest in enjoyable activities, hypersomnia, fatigue,
hopelessness, helplessness, decreased appetite, and poor
concentration. He reportedly continued to experience
intrusive thoughts and flashbacks about combat. He said that
he had nightmares about Vietnam several times a week. The
slightest noise reportedly made him jump. He was unable to
tolerate crowds. He said that the stayed home to avoid
interacting with anybody. He was easily agitated and
demonstrated mood lability. He reported having chronic
suicidal ideation, but denied having any imminent plans to
harm himself. He also reported intermittent homicidal
ideation, but denied having plans to harm anyone. He
reportedly had not been able to work as a long distance truck
driver since 2001 secondary to multiple medical problems.
There was no history of missed work due to mental illness.
He lived with his wife and two grandchildren they had
adopted.
On mental status examination, his sensorium was alert and he
was precisely oriented to time, place, person and situation.
He was casually dressed and attentive. There was no guarding
or evasiveness. Psychomotor activity was normal. His eye
contact was adequate. He said that his mood was pretty good
when smoking marijuana, but he was otherwise depressed. His
affect was sad and restricted. His speech was normal in
amount, rate and rhythm. His thought processes were goal
directed, and coherent. There was no evidence of obsessions
or compulsions. There was no evidence of psychosis. He
denied auditory or visual hallucinations. He reported having
problems with recent and remote memory. Abstraction was
normal, and insight was fair. The diagnoses were post-
traumatic stress disorder and cannabis dependence. The
examiner assigned a GAF score of 55. The examiner commented
that this score reflected moderate impairment in industrial
and social functioning with respect to post-traumatic stress
disorder.
A VA mental health record dated in August 2006 reflects that
the veteran stated that for two days he had been feeling
irritable, and contemplating shooting himself. However, it
was further stated that the veteran had not brought up any
symptoms of PTSD. On mental status examination, he was well
dressed and well groomed. No psychomotor activity was noted.
His mood was depressed, and his affect was flat. His speech
was not pressured. His thought content was goal directed,
and it was noted that he did not want to hurt himself. It
was also stated that he had no suicidal or homicidal ideation
at the time of this writing. He also had no hallucinations.
Abstraction was good, insight was good, and judgment was
good. The diagnoses were depression with suicidal ideation,
marijuana abuse in remission, and PTSD by history. A VA
discharge summary dated in August 2006 indicated that the
veteran was attempting to get into the residential program to
facilitate an increase in his service connected compensation
for "PTSD which he has no signs or symptoms of at this time
or any time in the past."
The report of a VA psychiatric examination conducted in March
2008 reflects that the veteran reported a history of mental
illness beginning in 1985. He reported that he was followed
by the VA. His current symptoms included depressed mood,
loss of interest in enjoyable activities, hypersomnia,
fatigue, hopelessness, helplessness, decreased appetite, and
poor concentration. He reportedly continued to experience
intrusive thoughts and flashbacks about combat. He also
reported nightmares about Vietnam several times per week. He
said that the slightest noise made him jump, and that he was
unable to tolerate being among large crowds. He said that he
was easily agitated, and reported chronic suicidal and
homicidal ideation, though he did not have any imminent plans
to harm himself. The frequency of symptoms were described as
daily, and the severity was described as moderate to severe.
He had a history of working as a long distance trucker for 33
years, but had not been able to work since 2001 secondary to
multiple medical problems. There was no history of missed
time from work due to mental illness. He had been married
three times, and reported that there were plans for divorce
from his current wife. The veteran lived with two
grandchildren, and stated that he slept about 18 hours a day.
On mental status examination, he was alert and precisely
oriented to place, person and situation. He appeared
disheveled. He had poor eye contact. He described his mood
as depressed. His affect was irritable, and tearful. His
speech was normal in amount, rate and rhythm. His thought
processes were goal directed and coherent. There was no
evidence of obsessions, compulsions or delusional thinking.
There was also no auditory or visual hallucinations. He
reported problems with recent and remote memory. His
abstraction ability was normal, insight was fair, and he
appeared to be able to protect himself from common dangers.
The diagnoses were post-traumatic stress disorder and
cannabis dependence.
The VA examiner assigned a Global Assessment of Functioning
score of 45 to reflect severe impairment. It was stated that
the veteran was able to participate in meaningful
interpersonal relationships with family members only, and was
socially isolated. There were no observable impairments in
thought process or communication skills. However, the
examiner stated that the thought process rendered this
veteran unemployable. Persistent symptoms of reexperiencing
with intrusive thoughts impaired his ability to focus on
tasks, work efficiently, and act on information provided. He
also reportedly had chronic anger, hyperarousal, and avoidant
behavior which affected his ability to interact appropriately
with others including coworkers and supervisors.
After reviewing all relevant evidence, the Board finds that
during the period from June 17, 2003 to March 12, 2008, the
post-traumatic stress disorder resulted in disturbances of
motivation and mood, but has not resulted in occupational and
social impairment with reduced reliability and productivity
due to such symptoms as: flattened affect; circumstantial,
circumlocutory, or stereotyped speech; panic attacks more
than once a week; difficulty in understanding complex
commands; impairment of short and long-term memory (e.g.,
retention of only highly learned material, forgetting to
complete tasks); impaired judgment; impaired abstract
thinking; or difficulty in establishing and maintaining
effective work and social relationships. Nor does the
veteran have other symptoms on a par with the level of
severity exemplified in these manifestations. The VA mental
examinations as well as the treatment records from this
period show that such symptoms contemplated for a higher
rating were generally not present. With respect to whether
he has a flat affect, the VA examination report dated in July
2003 noted that it was restricted, but it was not described
as being flat. In November 2003 his affect was described as
appearing calm. The VA hospital summary dated in February
2006 noted an appropriate affect. On examination in March
2006, it was noted that his affect was sad, but it was not
described as being flat. Although the VA mental health
record dated in August 2006 described the veteran's affect as
being flat, the treating physician indicated that there were
no signs of PTSD. Regarding whether he has circumstantial,
circumlocutory, or stereotyped speech, the examinations
repeatedly noted that his speech was within normal limits
with regard to rate and rhythm. Panic attacks are not
mentioned in any of the evidence, nor were problems with
understanding complex commands. Although the veteran has
reported complaints of memory loss, the Board finds no
objective confirmation of this in the medical evidence. With
respect to difficulty maintaining effective work and social
relationships, the Board notes that the reported reason for
terminating work was noted to be due to PTSD but rather due
to diabetes or other medical problems. In addition, although
the veteran has reported having social impairment, he has
maintained a marriage for many years. Thus the private and
VA medical records from prior to March 12, 2008, are
generally negative for the type of symptoms contemplated for
a rating higher than 30 percent.
The Board also finds that during the period from March 12,
2008 to present, the service-connected PTSD did not cause
total occupational and social impairment, due to such
symptoms as gross impairment in thought processes or
communication; persistent delusions or hallucinations;
grossly inappropriate behavior; persistent danger of hurting
self or others; intermittent inability to perform activities
of daily living (including maintenance of minimal personal
hygiene); disorientation to time or place; and memory loss
for names of close relatives, own occupation, or own name.
The medical treatment records as well as the report of a VA
examination conducted in March 2008 show that the symptoms
contemplated for a rating higher than 70 percent were not
present. Although the March 2008 VA examination report
indicates that the veteran was considered to be totally
disabled, the specific symptoms contemplated for a total
rating under Diagnostic Code 9411 were not present. The
report reflects that he was oriented, and his thought
processes were goal directed and coherent. There was no
evidence of delusional thinking. There were no
hallucinations. It was noted that there were no observable
impairments in communications skills. Overall, the findings
more nearly approximated the criteria for a 70 percent rating
rather than a 100 percent rating.
In summary, the Board concludes that the criteria for an
initial disability rating for PTSD higher than 30 percent for
the period from June 17, 2003; and higher than 70 percent for
the period from March 12, 2008 to the present date are not
met.
ORDER
Entitlement to an initial disability evaluation for post-
traumatic stress disorder (PTSD) in excess of 30 percent for
the period from June 17, 2003; and higher than 70 percent for
the period from March 12, 2008 to present, is denied.
____________________________________________
MARJORIE A. AUER
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs